Marks indicating the geographical origins of goods were the earliest types of trademark. Until the Industrial Revolution, the principal products entering international trade were primary goods such as minerals and agricultural produce and simple manufactured products such as pottery or woven fabrics. In the competition to earn revenue through trade, it became apparent that the products of particular regions were more saleable than comparable products from other regions.
To take advantage of the commercial attractiveness of these local reputations, merchants branded their goods with marks designating their place of origin. These brands, or ‘trademarks’, were tantamount to a warranty of quality.
The evolution of trademarks in the Industrial Revolution has not meant the disappearance of these geographic marks. Particularly in Europe, substantial processed foods markets and markets for alcoholic beverages are still dependent upon the continued recognition of marks indicating product origin.
Today, the most comprehensive system for the protection of geographic indicators is that developed by France. Its appellations d’origine (appellations of origin) are protected through a judgement of a court or through an administrative act in which a nexus must be shown between the region of origin and the characteristics of products. Examples of places recognized as appellations of origin are the wine-producing districts of Bordeaux, Burgundy and Champagne.
A question of quality
The European system was laid out in the Council Regulation 2081/92 on the protection of geographical indicators and designations for agricultural products and foodstuffs and the Council Regulation 2082/92 on certificates of specific character for agricultural products and foodstuffs. This legislation was largely inspired by the French system and leaves it to national authorities to decide which geographic indicators can or should be protected.
Article 22.2 of the Agreement on Trade-Related Aspects of Intellectual property Rights (TRIPS) requires that members of the World Trade Organization (WTO) ‘provide the legal means for interested parties to prevent’ the use of misleading geographic indicators. The TRIPS Agreement does not specify the legal means to protect these indicators; it is left for individual member states to decide.
In addition to the general protection for wines and spirits that is covered within Article 22, additional protection is accorded to geographical indicators for wines and spirits in Article 23. This additional protection requires states to establish a multilateral system of notification and registration of marks of origin for wines and spirits that are eligible for protection in those member states. For some countries, this additional protection is regarded as an unacceptable discrimination against other national products and many are arguing for an extension of that protection to all kinds of geographical produce, for example, agricultural products and handicrafts.
The US and Australia have been particularly critical of the EU approach to marks of origin. In particular, they argue that there is often little correlation between the biological area and the registered designation, calling into question the alleged relationship between geography and quality. The most recent example of this is the European Court of Justice (ECJ) finding that ‘Feta’ can only be used to designate the white cheese coming from mainland Greece and its islands. Critics have pointed out that this is a biologically diverse area and that the Danes, Bulgarians and others are just as capable of producing such cheese.
Some assert that the way in which the EU operates its system of registration for geographical indicators imposes higher burdens on overseas applicants, and that these indicators could be protected just as well by existing trademark laws.
However, few producers or national states in the EU are willing to relinquish the protection that geographical indicators provide. They say that in signalling the association between product quality and origin, these marks provide both a trade benefit in generating market appeal and a non-trade benefit in promoting local agricultural traditions and methods. For example, it is estimated that France has 593 geographical indicators registered under the general European rules for wines, spirits and foodstuffs, which generate €19bn for 138,000 agricultural enterprises.
Such indicators have also been recognised as guarantees of food safety. This has become particularly important where food-related diseases such as BSE or avian flu are attributed to particular localities.
In 2006, the EU replaced its 1992 regulations with a more equitable registration system. However, New World/Old World animosities remain and the introduction of any multilateral system for the registration of geographical indicators is unlikely.
Michael Blakeney is a co-director at London’s Queen Mary IP Research Institute and the author of IP and Geographical Indicators: A legal and economic analysis
This article first appeared in IP Review, issue 26